Lawyers want to bar death penalty in case

Lawyers representing the man charged in the fatal shooting of a Security Square Mall merchant last year asked a judge yesterday to prevent prosecutors from seeking the death penalty against him.

Defense attorney Paul B. DeWolfe argued that the request was justified given the General Assembly's debate over proposed legislation regarding capital punishment as well as a pending federal court challenge to lethal injection procedures and the decision late last year by Maryland's highest court to halt state executions until lawmakers develop appropriate oversight for the procedure.

"The state of the death penalty in Maryland is in flux right now," DeWolfe, lead counsel for Brian Keith Rose, told a Baltimore County judge during yesterday's pretrial hearing. "There may not be a proper procedure for the execution of defendants in Maryland. ... For the purposes of this case and this defendant, there is no death penalty."

Rose, 22, of Baltimore, is charged with first-degree murder, attempted carjacking and attempted armed robbery in the fatal shooting of Warren T. Fleming, 31, the owner of Security Square Mall's Cingular Wireless store. Fleming, a husband and father of two, was killed in January 2006 beside his four-door Mercedes in the shopping center's parking lot.

Relatives of both Fleming and Rose - who was arrested 13 days after the store owner's death - filled the courtroom yesterday.

Baltimore County Circuit Judge Susan M. Souder, who is presiding over the case, did not rule on most of the dozens of motions argued yesterday.

She did, however, grant a defense request to use at trial a special verdict form that asks jurors to determine not only whether prosecutors prove beyond a reasonable doubt that Rose committed first-degree murder but also whether they proved that he was a "first-degree principal to the murder" - a designation reserved for a person who actually caused the death in a murder case.

Defendants convicted of murder for contributing to, but not directly causing, a killing are generally not eligible for the death penalty in Maryland. Deciding whether a defendant is a principal in a killing is a task typically reserved for the sentencing phase of a capital case.

If a jury convicts Rose but does not find that he was a principal in Fleming's death, he cannot be sentenced to death.

Baltimore County prosecutors opposed DeWolfe's request, arguing that the defendant was not entitled to such a provision.

Prosecutors also opposed the defense request to prevent them from seeking the death penalty in light of a Court of Appeals death penalty decision, a death row inmate's challenge in federal court to Maryland's lethal injection procedures and related legislation under consideration in the General Assembly.

The December ruling by the high court imposed a de facto moratorium on executions in Maryland.

Ruling unanimously in an appeal by death-row inmate Vernon L. Evans Jr., the court determined that procedures for administering lethal injections should be considered regulations and, therefore, must be reviewed by a legislative committee and subject to public hearings. Alternately, the court ruled, the legislature could pass a law that exempts the procedures from the review.

Prosecutors argued yesterday that the ruling and federal case concern the state's method of execution rather than the constitutionality of the death penalty. Therefore, prosecutor Jason G. League told the judge, there is no reason to keep prosecutors from seeking the ultimate punishment against Rose.

Souder did not issue a ruling on the matter.

Rose, who is also known as Kemp Mitchell, Mitchell Kemp and Bryan Keith Rose, is scheduled to go to trial in June.